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26 Ariz. St. L.J. 461 (1994)
Justice Thurgood Marshall and the First Amendment

handle is hein.journals/arzjl26 and id is 473 raw text is: Justice Thurgood Marshall and the First Amendment J. Clay Smith, Jr.* Scott Burrell** I. INTRODUCTION The legacy of Justice Thurgood Marshall as a civil rights champion is well established and documented.' He will be remembered for his brilliant civil rights advocacy prior to his Supreme Court appointment as well as his distinguished career as a jurist. Marshall's commendations as a civil rights giant are well deserved. His legal successes, culminating with Brown v. Board of Education2 were a catalyst to a constitutional and social revolution unprecedented in this country. However, while Marshall's role as a civil rights lawyer should be celebrated and its historical significance should not be minimized, his historic efforts as a champion of civil liberties on the bench must also be acknowledged.' Marshall's Supreme Court opinions reflect a constitutional approach steeped in realism.4 Marshall refused to analyze cases before the Court * Professor of Law, Howard University School of Law. ,* Associate, Morrison & Foerster; J.D., Howard University School of Law; Member, California Bar. 1. See generally MICHAEL D. DAVIS & HUNTER R. CLARK, THURGOOD MARSH-ALL: WARRIOR AT THE BAR, REBEL ON THE BENCH (1992); RICHARD KLUGER, SIMPLE JUSTICE (1976); CARL T. RowAN, DREAM MAKERS, DREAM BREAKERS: THE WORLD OF JUSTICE THURGOOD MARSHALL (1993); MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961 (1994); J. Clay Smith, Jr., Thurgood Marshall: An Heir Of Charles Hamilton Houston, .20 HASTINGS CONST. L.Q. 503 (1993). 2. 347 U.S. 483, 495 (1954) (holding that government mandated segregation in public schools violated Fourteenth Amendment of United States Constitution). 3. Indeed, Marshall's career as a jurist has often been subjected to misleading, if not stereotypical characterizations. Marshall's legacy has been slow to shake the appalling negative portrait painted by the authors of The Brethren. See, e.g., BOB WOODWARD & SCOTT ARMSTRONG, The Brethren 47-48, 196-97, 258-59 (1979). One commentator noted that Woodward's character- ization of Marshall as a disinterested, if not lazy, Justice was wrong and perhaps racist. See Mark Tushnet, Thurgood Marshall and the Brethren, 80 GEO. L.J. 2109, 2109 (1992). 4. Professor Charles Yablon provides an interesting review of the realists' view of judicial decision-making. Charles M. Yablon, Justifying The Judge's Hunch: An Essay on Discretion, 41 HASTINGS L.J. 231 (1990). He notes that the realist movement rejected the view that decisions must be based entirely on rules and formulas. Id. at 237. The realists' view was that judicial decision-making should be based on an analysis of the available information and on intuition. Id. Thus realism began in large part as a rejection of the notions of formalism. Id. at 235 (The Realists' fascination with judicial intuition grew out of their rejection of legal formalism.). See generally WILFRID E. RUMBLE, JR., AMERICAN LEGAL REALISM (1968).

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